The English Judicature Act of 1873 pro vides to a certain extent for assignments of choses in action; but not every equitable as signment is within the statute [1902] 2 K. B. 196. A partial assignment of choses in ac tion is good in equity, although the legal title remains with the assignor ; Texas W. R. Co. v. Gentry, 69 Tex. 625, & S. W. 98.
But courts of equity will not, any more than courts of law, give effect to such as signments when they contravene any rule of law or of public policy. Thus, they will not give effect to the assignment of the half pay or full pay of an officer in the army ; 1 Ball & B. 389; or of a right of entry or action for land held adversely ; Hoppiss v. Eskridge, 37 N. C. 54; or of a part of a right in controversy, in considera tion of money or services to enforce it ; Wilhite v. Roberts, 4 Dana (Ky.) 173. Nei ther do the courts,, either of law or of eq uity, give effect to the assignment of mere personal actions which die with the per son; Jabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551; Oliver v. Walsh, 6 Cal. 456; Smith v. Sherman, 4 Cush. (Mass.) 408. A cause of action for deceit is assignable; Dean v. Chandler, 44 Mo. App. 338; but not for slander ; Miller v. Newell, 20 S. C. 123, 47 Am. Rep. 833. But a claim of damages to property, though arising ew delicto, which on the death of the party would survive to his executors or administrators as assets, may be assigned; Bisp. Eq. 166 ; McKee v. Judd, 12 N. Y. 622, 64 Am. Dec. 51Th Web ber v. Quaw, 46 Wis. 118, 49 N. W. 830. The transfer of a bill of lading ,will pass the claim for the conversion of the goods represented by it ; Dickson v. Elevator Co., 44 Mo. App. 498; Haas v. R. Co., 81 Ga. 792, 7 S. E. 629. See Smith v. Thompson, 94 Mich. 381, 54 N. W. 168. The right of vendor to bring a second suit in trespass to try title is assignable and passes to the vendee; Williams v. Bennett, 1 Tex. Civ. App. 498, 20 S. W. 856.
The assignee of a chose in action, unless it be a negotiable promissory note or bill of exchange, without notice, in general takes it subject to all the equities which subsist the assignor ; 1 P. Wins. 496 ; 4 Price 161; Brashear v. West, 7 Pet. (U. S.) 608, 8 L. Ed. 801; Cornish v. Bryan, 10 N. J. Eq. 146; Bishop v. Holcomb, 10 Conn. 444 ; Bush v. Lathrop, 22 N. Y. 535; Martin v.
Richardson, 68 N. C. 255; Boardman v. Hayne, 29 Ia. 339; Lane v. Smith, 103 Pa. 415; Williams v. Neely, 134 Fed. 1, 67 C. C. A. 171, 69 L. R. A. 232; Kleeman v. Fris bie, 63 III. 482. But it is not subject the equities of third persons of which he had no notice; Himrod v. Bolton, 44 III. App. 516. And a payment made by the debtor, even after the assignment of the debt, if before notice thereof, will be effectual; Woodbridge v. Perkins, 3 Day (Conn.) 364; Bishop v. Holcomb, 10 Conn. 444; U. S. v. Vaughan, 3 Binn. (Pa.) 394, 5 Am. Dec. 375; Warren v. Copelin, 4 Mete. (Mass.) 594.
In Pennsylvania by statute a bond is as signable and suit can be brought on it by the assignee if there are two witnesses to the assignment and in Delaware under a similar statute but one witness is now re To constitute an assignment, no writing or particular form of words is necessary, if the consideration be proved and the meaning of the parties apparent ; Dunn v. Snell, 15
Mass. 485; Dawson v. Coles, 16 Johns. (N. Y.) 51; Kessel v. Albetis, 56 Barb. (N. Y.) 362; Shannon v. Mayor, etc., of City of Hoboken, 37 N. J. Eq. 123; Garnsey v. Gard ner, 49 Me. 167; Patten v. Wilson, 34 Pa. 299; 13 Sim. Ch. 469; and therefore the mere delivery of the written evidence of debt ; Cannaday v. Shepard, 55 N. C. 224; Boeka v. Nuella, 28 Mo. 180; Jones v. Wit ter, 13 Mass. 304 ; Titeomb v. Thomas, 5 Greenl. (Me.) 282; Prescott v. Hull, 17 Johns. (N. Y.) 284; the delivery being essential to the assignment ; Lewis v. Mason's Adm'r, 84 Va. 731, 10 S. E. 529; Shannon v. Mom, etc., of City of Hoboken, 37 N. J. Eq. 123; Noyes v. Brown, 33 Vt. 431; or the giving of a power of attorney to collect a debt, may operate as an equitable transfer thereof, if such be the intention of the parties; 7 Ves. Ch. 28; Bergen v. Bennett, 1 Caines Cas. (N. Y.) 18, 2 Am. Dec. 281; People v. Tioga Com mon Pleas, 19 Wend. (N. Y.) 73. See As SIONMENT.
Bills of exchange and promissory notes, in exception to the general rule, are by the law merchant transferable, and the legal as well as equitable right passes to the trans feree. See BILL OF EXCHANGE; NEGOTIABLE INSTRUMENTS. In Some states, by statutory provisions, bonds, mortgages, and other doc uments may be assigned, and the assignee receives the whole title, both legal and uitable; 2 Bouvier, Inst. 192. In New York, the code enables an assignee to maintain an action in his own name in those cases in which the right was assignable in law or in equity before the code was adopted; Pur ple v. R. Co., 4 Duer (N. Y.) 74.
A distinction must be made between the security or the evidence of the debt, and the thing due. A deed, a bill of exchange or a promissory note may be in the possession of the owner, but the money or damages due on them are no less choses in action. This distinction is to be kept in view. The chose in action is the money, damages or thing owing. The bond or note is but the evidence of it. There can in the nature of things be no present possession of a thing which lies merely in action; 1 Bouv. Inst. p. 191; First Nat. Bank v. Holland, 99 Va. 495, 39 S. E. 126, 55 L. R. A. 155, 86 Am. St. Rep. 898..
In the absence of fraudulent transfer or such other fraud as would positively impede an action at law and proceeding in garnish ment, equity will not subject the choses in action of the debtor to the payment of his debts; Hall v. Imp. Co., 143 Ala. 464, by South. 285, 2 L. R. A. (N. S.) 130, 5 Ann. Cas. 363.
See AssioNmENT; Srrus ; Girr ; 20 L. J. R. 113.